Broussard v. Beaumont Rice Mills

• Decision Date: 22 April 1938
• Docket Number: No. 3291.,3291.
• Citation: 115 S.W.2d 1235
• Parties: BROUSSARD v. BEAUMONT RICE MILLS et al.
• Court: Texas Court of Appeals

115 S.W.2d 1235

BROUSSARD v. BEAUMONT RICE MILLS et al.

No. 3291.

Court of Civil Appeals of Texas. Beaumont.

April 22, 1938.

Rehearing Denied April 27, 1938.

Appeal from District Court, Jefferson County; R. L. Murray, Judge.

Suit by the Beaumont Rice Mills and others against Ike Broussard in trespass to try title to recover lands, or in the alternative for judgment for the amount of a vendor's lien note. Judgment for amount of the note, with foreclosure of the vendor's lien, and defendant appeals.

Reformed and affirmed.

D. E. O'Fiel, of Beaumont, for appellant.

H. P. Barry, of Beaumont, for appellees.

WALKER, Chief Justice.

This was a suit by appellees, Beaumont Rice Mills et al., against appellant, Ike Broussard, in trespass to try title to recover 53.71 acres of land out of the upper Sarah Miles Survey, abstract No. 173, in Jefferson county. In the alternative, appellees prayed for judgment for the amount of a vendor's lien note in the principal sum of $2,297.60, dated the 28th day of September, 1925, with interest at 8 per cent. per annum from date and 10 per cent. attorney's fees, given by appellant to appellees in part payment for the above-described land, deeded to appellant by appellees by deed of even date with the note. A vendor's lien was reserved in the deed to secure payment of the note; by its terms the note was payable in yearly installments of $500, each, with interest thereon at 8 per cent. per annum, payable annually, as it accrued; the payments were to be applied, first, to the payment of accrued interest, and the balance of the $500 installments to be applied on the principal. The first installment matured on the 28th day of September, 1926, and the second, the 28th day of September, 1927, and yearly thereafter. Had the installments been paid promptly, the last installment would have matured and been payable on the 28th day of September, 1934. Nothing was ever paid on the note, and it was in no way renewed or extended. The theory of appellees' count in trespass to try title was that, by reason of and because of appellant's default in his payments, they rescinded the sale of the land made by them to appellant on the 28th day of September, 1925; they alleged appellant's trespass as of that date. Appellees dismissed their count in trespass to try title, and, on trial to the court without a jury, were given judgment on the 12th day of November, 1936, for the full amount of the note, principal, interest, and attorney's fees, in the sum of $6,732.77, with interest at 8 per cent. per annum from the date of the judgment, and with foreclosure of the vendor's lien, all as prayed for. Appellees' petition was filed on the 8th day of June, 1936; the count in trespass to try title was dismissed on the 3d day of November, 1937. By his answer under oath, appellant pleaded general denial and the statute of limitation of four years against appellees' cause of action on their note. By his motion for new trial he complained only that the court erred in overruling his plea of limitation of four years.

Opinion.

J. J. Hebert was a joint owner of the note in controversy. Lula J. Hebert, "individually, and Survivor in Community of the Estate of J. J. Hebert, deed.," was a party plaintiff in the trial court, and one of the appellees on appeal. In his conclusions of fact, filed on appellant's request, the court made the following finding: "J. J. Hebert, grantor aforesaid, after the execution of said deed died intestate, and after his death Mrs. Lula J. Hebert gave bond and qualified as Survivor in Community of the Estate of herself and deceased husband. The surviving wife, individually, and as Survivor in Community of the Estate of herself and deceased husband, J. J. Hebert, and the surviving children and the respective husbands of those who were married, were made parties plaintiff." Appellant insists that this finding is fundamentally erroneous and without support in the evidence. The assignment is overruled. Appellant reserved no exception to the trial court's fact conclusions. He made no assignment against this fact conclusion in his motion for new trial. He would send us to the statement of facts to determine whether or not the finding has support in the evidence. On this statement, the contention must be denied. Hardwicke v. Trinity Universal Ins. Co., Tex.Civ.App., 89 S.W. 2d 500; Jefferson County...